In a recent case (Talon Engineering Ltd v Smith), the Employment Appeal Tribunal (EAT) has set a bit of a controversial precedent by upholding a tribunal’s finding of unfair dismissal.
The employee in question was invited to attend a disciplinary hearing. However, as her selected union representative was unavailable to attend on the specified date, she offered to attend two weeks later. The employer, Talon Engineering, refused to delay the hearing but the employee was not prepared to attend without her Union rep. The employer chose to hold the hearing without her and the employee was dismissed.
When the employee took the case further, a tribunal found that the employer had behaved unreasonably by not agreeing to a delay in the hearing to enable the Union rep to attend, and so found the dismissal to be unfair; a conclusion that EAT agreed with.
What makes this decision rather contentious is that, although an employee has a statutory right to be accompanied by a representative to a tribunal hearing, this is normally based on a representative being unavailable for a maximum of five working days.
In this case, the employee had proposed a longer delay which the Tribunal had not taken into consideration when upholding the appeal. EAT’s decision to support the case of unfair dismissal demonstrates that they deem the issues of unfair dismissal and the right to be accompanied as two separate issues. This gives out a mixed message to employers as the Acas Code of Practice stipulates that employers should allow a postponement of up to five days, but there is no mention of employers having to allow postponements beyond this timeline.
Mixed Messages to Employers
The second controversial outcome of this ruling, is that by supporting the employee’s claim for unfair dismissal, EAT is sending out a further mixed message. In essence, they could be seen to be allowing an employee to make the decision to attend a tribunal hearing as and when it suits them, and not within the statutory guidelines.
The other issue is the effect of the employee refusing to attend. The EAT held that she could not be criticised for this and agreed with the Tribunal that it was unfair of the employer to proceed in her absence. Of concern is that seems to give an employee a veto over attending a hearing if the arrangements aren’t to their liking. No consideration was given as to whether the employee could have had a fair hearing even if she did not have her first choice of representative.
One of the key areas of expertise offered by the team at HCHR is to assist employers when it comes to employee tribunals to ensure they follow the statutory rules.
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